Citation Nr: 9826996
Decision Date: 09/09/98 Archive Date: 09/17/98
DOCKET NO. 94-37 371 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Cleveland, Ohio
THE ISSUE
Entitlement to service connection for asthma.
REPRESENTATION
Appellant represented by: Paralyzed Veterans of America,
Inc.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
K. P. Reardon, Associate Counsel
INTRODUCTION
The appellant served on active duty for training from March
1986 to November 1986. This matter comes before the Board of
Veterans’ Appeals (Board) on appeal from a July 1992 rating
decision by the Buffalo, New York RO. This case was before
the Board in August 1996 when it was remanded for additional
development.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends that she is entitled to service
connection for asthma. Specifically, she contends that the
asthma that was shown following her separation from service
developed either during service (as evidenced by an inservice
diagnosis of bronchitis) or as a result of service.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the appellant's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that, when doubt is resolved in the
appellant’s favor, the evidence supports the claim for
service connection for asthma.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the appellant's claim of service connection
for asthma has been obtained by the RO.
2. It is reasonably probable that the appellant’s asthma was
incurred in service.
CONCLUSION OF LAW
With doubt resolved in favor of the appellant, asthma was
incurred during the appellant's period of military service.
38 U.S.C.A. §§ 1131, 5107 (West 1991); 38 C.F.R. § 3.303
(1997).
REASONS AND BASES FOR FINDING AND CONCLUSION
Factual Background
A July 1982 medical record from Strong Memorial Hospital
notes that the appellant was seen with complaints of a
urinary tract infection. The examination report notes a past
medical history of “pneumonitis, bronchial asthma” at age
three. A review of systems revealed pneumonia in childhood,
and no chronic cough, asthma, bronchitis or tuberculosis.
Upon examination, the lungs were clear and resonant with good
excursion.
In October 1985, at the time of her enlistment with the New
York Army National Guard, the appellant reported that she did
not have a medical history of asthma or shortness of breath.
An October 1985 report of examination notes a “normal”
clinical evaluation for her lungs and chest. She was found
to be physically qualified for service.
The appellant entered active duty for training in March 1986.
A July 11, 1986 service medical record notes that she was
evaluated for a bronchitis follow-up. The examiner noted
that the appellant experienced increased problems with dust
exposure and increased shortness of breath. Pulmonary
function testing revealed moderate obstructive pulmonary
impairment. Restrictive pulmonary impairment could not be
excluded. There was no change after bronchodilator.
Assessment was resolving bronchitis. A July 21, 1986 service
medical record notes that the appellant was seen for a
follow-up for questionable asthma. Upon examination, the
lungs were clear. Exercise testing was conducted and on
clinical examination only the presence of a mild wheeze was
noted. The examiner reported there was no evidence of
asthma, only of bronchitis. An August 1986 service medical
record notes the appellant's complaints of mild, productive
cough; sore throat; headache; myalgia; and nausea and
vomiting. A chest x-ray revealed the presence of scarring of
the left, mid-upper lung. The examiner reported good breath
sounds, but wheezes at the left lower base. The appellant
was assessed with viral syndrome. On October 17, 1986, the
appellant was reported to complain of upper respiratory
infection symptoms for 24 hours. Examination revealed
occasional inspiratory wheezing and an impression of probable
respiratory disease was provided. A service medical record
dated October 26, 1986 notes findings of crackles in the left
lung base, but otherwise clear. A chest x-ray revealed no
new infiltrates. The impression included viral
gastroenteritis. On October 31, 1986, the appellant was
shown to complain of chest pain and she was assessed with
costochondritis. The appellant was discharged from service
in November 1986; no discharge examination is of record.
A private hospitalization report dated from October 23, 1987
to November 3, 1987 notes that the appellant was admitted
with complaints of cough, shortness of breath and cold
symptoms. Medical reports note a history of bronchial asthma
diagnosed at age three, sarcoid diagnosed by lymph node
biopsy in June 1984, and a March 1987 diagnosis of walking
pneumonia. It was felt that the appellant had “two
processes going on, the first being reactivation of her
asthma, the second possible progression of her underlying
sarcoid.” A pulmonary consultation was requested after a
chest x-ray revealed a progression of interstitial changes
and the presence of wheezing was noted. Discharge diagnoses
included exacerbation of asthma and possible exacerbation of
sarcoid. In January 1988, the appellant was seen with
complaints of a cough, left-sided chest pain, and cold
symptoms. Upon examination, decreased breath sounds and
wheezing were noted. Discharge diagnoses included
sarcoidosis and bronchospasm. Private treatment records
dated from February 1988 to March 1992 note that the
appellant was seen on several occasions for treatment of
several conditions, to include asthma.
By rating decision of July 1992, the RO denied entitlement to
service connection for asthma, bronchitis, and a bronchial
condition (also characterized as sarcoidosis). In a July
1992 notice of disagreement, the appellant expressed her
disagreement with only the issue of service connection for
asthma. The issues of entitlement to service connection for
bronchitis and a bronchial condition (also characterized as
sarcoidosis) were not appealed and became final.
In an August 1993 letter, Robert Poe, M.D., the appellant’s
private physician, reported that he first evaluated the
appellant for pulmonary problems in September 1992, and that
he had reviewed her private records which included a 1988
diagnosis of bronchial asthma and the 1984 diagnosis for
sarcoidosis. He indicated that the appellant stated that she
had not experienced breathing problems until she entered the
service and participated in basic training; however, he noted
that he had not reviewed her service medical records. He
stated that his suspicion was that the appellant's problem
with bronchitis in 1986 was actually the onset of her asthma.
An August 1993 letter from Lynn Bickley, M.D., notes that
Strong Memorial Hospital has no documentation of the
appellant’s illness at age three. The appellant’s records go
back to only 1987. In addition, Dr. Bickley stated her
opinion that “there is no connection between a single
episode of asthma in childhood and the diagnosis of sarcoid
much later.”
A November 1994 VA examination report notes the appellant’s
history of sarcoid as diagnosed by a lymph node biopsy in
1984 and recurring respiratory problems for the past seven or
eight years. The VA examiner was asked to review the claims
file and provide an opinion which addressed whether
respiratory symptoms treated in service in 1986 were the
onset of subsequently diagnosed asthma. Pulmonary function
testing was reported to reveal very severe obstructive
pulmonary disease with additional bronchodilator response.
Diagnoses included asthma, frequent bronchitis, and
historical diagnosis of sarcoid. In an addendum dated in
March 1995, the examiner noted that based on the appellant's
clinical history, asthmatic problems appear to have begun in
approximately 1986 and have caused respiratory difficulty
since then.
The appellant testified during a July 1995 personal hearing
that she was never treated for asthma prior to service. She
further testified that her “breathing” problem first began
during service in March 1986 and has persisted thereafter.
She stated that following service she was seen at Strong
Memorial Hospital in December 1986 with complaints of
respiratory problems.
In a July 1995 letter, Dr. Poe reported that sarcoidosis and
asthma are distinct entities and are unrelated. He stated
that in his opinion, the appellant's asthma developed while
she was in the service, when she was diagnosed with
bronchitis. He indicated that it is not unusual for a bout
of bronchitis to herald the onset of the disease. He
reported that his treatment since 1992 had focused upon
control of the appellant's asthma. He did not indicate that
he had reviewed the appellant's service medical records.
In its August 1996 Remand, the Board instructed the RO to
request the names and addresses of all health care providers
where the appellant received treatment for her asthma; and to
attempt to obtain treatment records from Strong Memorial
Hospital which, during the July 1995 hearing, the appellant
testified were on microfiche. In addition, the RO was
instructed to schedule the appellant for a VA pulmonary
examination in accordance with VA's Physicians Guide for
Disability Evaluation Examinations. The examiner was to
review the claims folder, paying special attention to the
service medical records and all relevant pre-service and
post- service medical records relative to treatment for
respiratory disorders express an opinion as to the etiology
of the appellant's asthma and indicate whether it is as least
as likely as not that the asthma is related to the 1986
diagnosis of bronchitis or any other disorder from service.
The evidence of record notes that the appellant furnished a
release for the treatment records at Strong Memorial Hospital
in October 1996. Also at this time, the appellant's
representative advised the RO of the appellant's new,
although temporary, address: [redacted].
Received in February 1997 were copies of treatment records
from Strong Memorial Hospital dated from January 1988 to
March 1992. These treatment records note ongoing treatment
for chronic asthma.
The evidence of record indicates that the RO scheduled the
appellant for a VA pulmonary examination in April 1997;
however, the appellant failed to report to the examination.
Unfortunately, the notification letter to the appellant to
report for the scheduled examination appears to have been
mailed to her previous address, [redacted]. In May 1997,
the RO notified the appellant of her failure to report for
the scheduled examination, again mailing the notification to
her previous address in [redacted]. This letter was
returned to the RO as not deliverable as addressed. After
two unsuccessful attempts to contact the appellant by phone,
the RO again notified the appellant of her failure to report
for the scheduled examination by letter dated in June 1997.
This letter was sent to another address: [redacted]. This letter was not
returned by the Post Office as undeliverable. There was no
response from the appellant.
The appellant's representative noted in a June 1998 VA Form
646 that “[v]arious attempts have been made to locate the
[appellant] in order to complete the development as ordered
by the Board of Veterans [sic] Appeals, but to no avail.”
No other medical treatment records have been submitted.
Analysis
Initially, the Board finds that the appellant's claim is well
grounded within the meaning of 38 U.S.C.A. § 5107(a). That
is, she has presented a claim that is not inherently
implausible. See Murphy v. Derwinski, 1 Vet. App. 78, 81
(1990). Furthermore, after reviewing the record, the Board
is satisfied that all relevant facts have been properly
developed. In this regard, the Board notes that the RO has
attempted to obtain a current examination of the appellant,
and while the attempts were unsuccessful, the appellant has
clearly not kept the VA apprised of her whereabouts. The
Board further notes that 38 C.F.R. § 3.655(b) provides that
"[w]hen a claimant fails to report for an examination
scheduled in conjunction with an original compensation claim,
the claim shall be rated based on the evidence of the
record." Accordingly, the Board will adjudicate the
appellant’s claim based on the evidence of record which
includes medical records received on remand. There is no
further assistance to the appellant required to comply with
the duty to assist her, as mandated by 38 U.S.C.A. § 5107(a).
See Hyson v. Brown, 5 Vet. App. 262 (1993).
Service connection may be granted for a disability that is
due to a disease or injury which was incurred in or
aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R.
§ 3.303. A determination of service connection requires a
finding of the existence of a current disability and a
determination of a relationship between that disability and
an injury or disease incurred in service. Watson v. Brown, 4
Vet. App. 309, 314 (1993).
When, after consideration of all evidence and material of
record in a case, there is an approximate balance of positive
and negative evidence regarding the merits of an issue
material to the determination of the matter, the benefit of
the doubt in resolving each issue shall be given to the
claimant. 38 U.S.C.A. § 5107(b).
For an appellant to prevail in her claim it must only be
demonstrated that there is an approximate balance of positive
and negative evidence. In other words, the preponderance of
the evidence must be against the claim for benefits to be
denied. Gilbert v. Derwinski, 1 Vet. App. 49, at 54 (1990).
The appellant contends that her asthma was incurred during
her period of military service. Service medical records show
that the appellant was seen on multiple occasions during
service with complaints of wheezing, shortness of breath, and
problems with dust exposure. Although no diagnosis of asthma
was noted during service, asthma was diagnosed in a private
hospitalization report dated from October 1987 to November
1987, less than a year after discharge. Since separation
from service, private and VA medical records demonstrate the
continuing chronicity of asthma. The appellant has provided
testimony at a personal hearing stating that she has suffered
from ongoing problems with asthma since service.
With regard to the appellant's claim that a current diagnosis
of asthma is related to service, the Board notes that both a
private physician and a VA examiner have opined that the
appellant’s asthma appears to have begun during her period of
military service. An August 1993 letter from the appellant’s
private physician, Dr. Poe, indicates that he did not review
the appellant’s service medical records; despite this, it
cannot be stated that the preponderance of the evidence is
against the appellant's claim.
The Board notes that it would have been helpful had the
appellant reported for a scheduled VA examination in 1997,
thus providing a complete picture of her current disability.
However, in view of the medical evidence which is now of
record and testimony concerning her ongoing symptoms, the
Board finds that, by resolving any doubt in the appellant’s
favor, there is competent evidence of continuity of
symptomatology during and following service in addition to
medical opinion linking the appellant’s asthma to service.
Accordingly, the Board finds that the evidence supports the
appellant’s claim of entitlement to service connection for
asthma.
ORDER
Entitlement to service connection for asthma is granted.
STEVEN L. COHN
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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